The “Revolving Door” of the Customary Marriages’ Validity Requirement in Action ‒ Mbungela v Mkabi [2019] ZASCA 134

Abstract

On the face of it, section 3 of the Recognition of Customary Marriages Act 120 of 1998 (RCMA) does not look ominous. 
Notwithstanding the plain language of the above provision, there is abundant case law and academic articles dealing with the interpretation and/or application of section 3(1)(b) in particular. A decision of the Supreme Court of Appeal (SCA) in Mbungela v Mkabi ((820/2018) [2019] ZASCA 134) adds to what is fast becoming a jurisprudence of the salient issues relating to the understanding of paragraph (b) of subsection (1). The issue of the scope of this paragraph has become more relevant in the inquiry into the transfer and/or integration of the bride into the groom’s family pursuant to the conclusion of a lobolo agreement. In his latest academic offering, Manthwa introduces this ongoing Achilles heel of customary marriages by referencing a number of cases and academic opinions; the references serve to justify the relevance of his work in the presence of so much jurisprudence on the topic. It is prudent to highlight also that Bakker provided an insightful criticism of the court a quo in Mkabe v Minister of Home Affairs ((2014/84704) [2016] ZAGPPHC 460). On the whole, it is argued here that the judgment of the SCA is incorrect in a few material respects and that the criticism by Bakker of the court a quo is legally sound and contributes meaningfully to the jurisprudence in this area.
As this case note demonstrates, the SCA not only incorrectly interprets and applies the law, but the judgment also unjustifiably departs from precedents relating to the transfer and/or integration of the bride. In effect therefore, it is submitted, the SCA establishes a changeable attitude relating to the transfer and/or integration of the bride. This attitude is symptomatic of an apparent constitutional interpretation that desires a specific outcome almost at any cost. As such, this case note is relevant as it captures the latest instalment of the changing attitude towards the precepts of the transfer and/or integration of the bride. Thus, there is as much a need for continuous monitoring of this revolving door of interpretation and/or application as there is for cases dealing with this aspect. The matter is therefore considered as unsettled and merits ongoing academic discourse.
This issue of unsettled law finds resonance in the pronouncements of the Constitutional Court in Bhe v Magistrate, Khayelitsha ([2004] ZACC 17 par 112).
In light of the foregoing, the casuistic and often contradictory jurisdiction on the issue of transfer and/or integration of the bride is considered in the context of the constitutional injunction in terms of section 39(2) of the Constitution of the Republic of South Africa, 1996 (the Constitution) and the facts of the case in Mbungela v Mkabi (supra).